Plaintiff seeks to recover compensation for the death of her son, George Garbutt, Jr., upon whom she claims to have been totally dependent. The deputy commissioner of the department of labor and industry found plaintiff was totally dependent upon deceased and entered an award of $18 a week. The award was affirmed by the department. Defendants appeal.
George Garbutt, Jr., suffered an accidental injury arising out of and in the course of his employment June 26, 1936, and died on the same day as a result of the injury. His mother, Mrs. Garbutt, was a widow, her husband having died in October, 1935. Her husband had been a former Michigan Bell Telephone Company employee receiving a pension of $55.63 a month. On his death, the telephone company made a lump sum payment to Mrs. Garbutt of $500, of which $389.24 was used to pay funeral expenses, and it continued to pay the monthly payments of $55.63 until October 1, 1936. Plaintiff's son was 31 years of age, worked part of the time after his father's death but, although plaintiff testified he took his father's place, went ahead and paid everything, the record shows that even though he turned over all of his wages to plaintiff, his total earnings amounted to less than the amount it cost her to provide him with food and lodging. Plaintiff supported *Page 404 herself out of the money received from the telephone company and in reality her son was partially dependent upon her. At the time of his death, deceased was working for William Stoll as a painter. He also had worked a short time for the Detrola Radio Corporation.
Dependency, as used in the workmen's compensation act, contemplates actual support. Franklin Fluorspar Co. v. Bell,247 Ky. 507 (57 S.W. [2d] 481); Betor v. National Biscuit Co.,85 Mont. 481 (280 P. 641); Walz v. Holbrook, Cabot RollinsCorp., 170 App. Div. 6 (155 N.Y. Supp. 703); Paul v. StateIndustrial Accident Commission, 127 Ore. 599 (272 P. 267);Morris v. Yough Coal Supply Co., 266 Pa. 216 (109 A. 914). To constitute dependency, there must be something more than a mere legal right to support. Colorado Fuel Iron Co. v.Industrial Commission, 90 Col. 330 (9 Pac. [2d] 285); Glaze v.Hart, 225 Mo. App. 1205 (36 S.W. [2d] 684; Parson v.Murphy, 101 Neb. 542 (163 N.W. 847, L.R.A. 1918 F, 479); UtahFuel Co. v. Industrial Commission, 80 Utah, 301 (15 Pac. [2d] 297, 86 A.L.R. 858).
Under 2 Comp. Laws 1929, § 8422 (Stat. Ann. § 17.156), a wife and children under 16 years, or over that age if physically or mentally incapacitated from earning a living, are conclusively presumed to be dependents. The statute continues:
"In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the facts may be at the time of the injury. Where a deceased employee leaves a person or persons wholly dependent on him or her for support, said person or persons shall be entitled to the whole death benefit." *Page 405
Whether plaintiff was, or was not, totally dependent upon deceased was a question of fact to be determined from the testimony. McLaughlin v. Antrim County Road Commission,266 Mich. 73.
Where the facts are undisputed, dependency becomes a legal conclusion. Kimber v. Michigan Light Co., now Consumers PowerCo., 229 Mich. 663.
Whether plaintiff was dependent upon deceased must be determined as of the date of the accident. 2 Comp. Laws 1929, § 8423 (Stat. Ann. § 17.157); Miller v. Riverside Storage Cartage Co., 189 Mich. 360.
The burden was upon plaintiff to prove that her son's contributions constituted a part of her means of living.Neubauer v. Levy, 252 Mich. 83. In determining the extent of dependency, the cost to plaintiff of furnishing room and board to the deceased should be deducted. Moll v. City Bakery,199 Mich. 670. In Kostamo v. H. G. Christman Co., 214 Mich. 652, this court recognized that amounts paid as board could not be construed as support. In that case, the deceased had given his mother $27 a month for board, and $33 a month in addition. It was held the mother was dependent only to the extent of $33 a month. In Bergerhoudt v. Riter-Conley Co., 242 Mich. 438, where a deceased turned over all his wages to his mother, the court determined the amount contributed to the support of the mother by deducting the amount of deceased's living expenses from his annual earnings. This is the general rule. So much of the earnings of deceased as was needed and necessarily used for his individual care and support is not to be treated as a contribution by him to the support of his dependents. MilwaukeeBasket Co. v. Wiecki, 173 Wis. 391 (181 N.W. 308). InJedrlinich v. James Shewan Sons, Inc., 193 App. Div. 915 *Page 406 (183 N.Y. Supp. 111), a mother to whom a son paid $5 a week for board and lodging was held not to be dependent.
It is contended by plaintiff that if we exclude the aid received from the telephone company, which they characterize as charitable, she had no other means of support and, therefore, must have been dependent upon the deceased. If the telephone company's help had been discontinued, plaintiff may have had to have the same amount of aid from some other source. Deceased's contributions were not even sufficient to provide for his own needs. Plaintiff herself testified relative to the aid received from the telephone company, "Why, I couldn't have gotten along. I had to have help," and "That's why they helped me, because I didn't have any income."
One may not be held to be totally dependent upon another who was incapable of supporting himself alone. From the accepted legal standards for determining the degree of dependency in cases of partial dependency, we must find there was no dependency of plaintiff upon deceased whatsoever. We cannot say plaintiff was totally dependent because deceased turned over to her his entire earnings. There is no evidence to support the finding of the department of labor and industry.
Award of compensation to plaintiff should be reversed, with costs.
SHARPE, J., concurred with POTTER, J. *Page 407